1877. March

CHRISTIAN, J. The magnitude of the interests inTerm. volved, and the interesting and difficult legal questions growing out of it, render this one of the most important cases that has yet been submitted to the decision Mills' ex's of this court.

Mills & als

V.

& als.

Same

V.

Lancaster

& als.

The oral argument occupied two weeks, while the printed notes of counsel cover nearly five hundred pages. The record is proportionately voluminous. The case has been argued by a number of able and distinguished counsel, who have exhibited their accustomed zeal, ability and learning in maintaining the interests of their respective clients.

These considerations have united to induce the court to give to this important case the most deliberate and careful investigation, and constitute my apology for the unusual length of this opinion.

This case is for the second time before this court. It is the sequel of the cases of Corbin & als. v. Mills' ex'ors & als., Robinson v. Mills' ex'ors & als., and Lancaster &als. v. Corbin & als., reported in 19 Gratt. 438.

In the third named cause this court made the following decree: "The court is further of opinion, that, while the court will take judicial notice of the fact that on the 13th day of April 1863, the date of the transaction which is the subject of controversy in this cause, the treasury notes of the United States, and also the treasury notes of the Confederate States, were greatly depreciated in value as compared with specie, it is not competent for the court to take judicial notice of the rate of depreciation of either currency at any particular time, nor of the extent to which at any particular time the treasury notes of the Confederate States were available, according to the common usages of business, for the payment of debts contracted before the war and payable in specie or in current money of

1877. March

Term.

Mills & als

V.

Mills' ex's & als.

Same

V.

& als.

the United States, or for the purchase of property, or otherwise. The court is further of opinion, that inasmuch as the record in this cause contains no evidence upon these points or either of them, it does not contain sufficient materials to enable the court to make a proper decision upon the questions in controversy. The court is therefore of opinion, that the said circuit court, instead of proceeding to make a decree upon the Lancaster merits of the controversy in the existing state of the record, should have directed an enquiry by a commissioner to ascertain what was, on the 13th day of April 1863, the value, as compared with specie, of the treasury notes of the United States and also of the treasury notes of the Confederate States, and to what extent, at that time, the treasury notes of the Confederate States were, according to the common usages of business in Richmond, available for the payment of debts contracted before the war and payable in specie or current money of the United States and well secured on real estate, or for the purchase of property, or otherwise, with leave to any of the parties to file additional evidence as they may be advised upon any matter involved in the cause.' And the cause was remanded to the circuit court for further proceedings to be had therein in accordance with this decree.

After the causes were remanded to the circuit court, the plaintiff in the suit of Corbin v. Mills' ex'ors & als. filed an amended and supplemental bill, alleging his objections to the settled accounts of the executors.

The bill charges the executors with an improper and illegal administration of the estate of their testator and a violation of their duties as executors and trustees under the will. The particular specifications may be best stated as follows:

1. That the two executors had no authority to sell

March

Term.

1877 the Leigh street property for Confederate States treasury notes, without the consent of the beneficiaries under the will and the concurrence of the third executor; and that the deed of the two executors transferred no title to the grantees; and that the same were and are illegal and void.

Mills & als

V.

Mills' ex's

& als.

Same

V.

Lancaster

& als.

2. That the will of Nicholas Mills did not confer upon his executors authority to invest the residuary estate given by the fourteenth clause to the grandchildren of the testator, nor to make any investment whatever, except under the fourth, tenth, eleventh twelfth and thirteenth clauses of the will; and that the legacies bequeathed by the thirteenth clause should. have been paid to each of the grandchildren named therein as were of age.

3. That the executors had no authority to collect in Confederate States treasury notes, especially at their nominal value, well secured debts due in specie or its equivalent and in this connection the debt of Bradford, Morriss, the Midlothian coal mining company, the Exchange hotel company, Glazebrook, and the stock of the Exchange hotel company, are enumerated; and the bill charges that these payments, made in this currency so greatly depreciated, did not discharge the debtors.

4. That the authority given to the executors by the eighteenth clause of the will to change investments, did not apply to the residuary legatees, and is not binding upon them, but was only applicable to investments made under the fourth, tenth, eleventh, twelfth and thirteenth clauses of the will.

5. That the executors had no authority to invest in Confederate States bonds, because they were hazardous and unsafe, and the will required the investments it did authorize to be safe investments.

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March

6. Reference is made in said supplemental bill to the pending suit of Corbin v. Lancaster, as exhibiting Term. the grounds of objection to the sale of the Exchange hotel ground rent.

Mills & als

V.

& als.

This bill was answered by the executors Howison Mills' ex's and Mills, who controvert and put in issue all the material allegations of the bill.

Much evidence was taken upon the points of enquiry directed by this court by its decree of the 13th day of March 1869; voluminous reports and accounts were returned by the commissioner of the court; and on the 4th day of March 1872 the chancery court of the city of Richmond pronounced its decree, by which it declared, and so adjudged, ordered and decreed: First, "that the sale of the real estate in the bill mentioned, made by the two executors, Robert R. Howison and Charles S. Mills, was valid, and that their deeds conveyed a good title to the purchasers thereof; and that the third executor after his qualification in effect ratified the same; nor was the consent of the beneficiaries under the will necessary to authorize said. executors to sell said real estate."

Second. That the executors were authorized under the will to invest the residuary estate given by the fourteenth clause thereof, and that the investments so made by them were legal and valid.

Third. That the said executors were authorized by the will to collect the debts due from Messrs. Morriss, Bradford, Glazebrook, and the Midlothian mining company, and from all others who were debtors to their testator, and that their collection of said debts in Confederate money was valid, and fully discharged the debtors.

Fourth. That the sale of the Exchange hotel stock was made in consequence of the dissolution of the

Same

V.

Lancaster

& als.

1877. March

company by the action of a majority of the stockTerm. holders, and that the executors were right in receiving the share of the proceeds of such sale belonging to the estate of their testator in Confederate money.

Mills & als

V.

Mills' ex's

& als.

Same

V.

& als.

Fifth. That the rent charge on the Exchange hotel property was, in substance, a mortgage, by which the sum of $26,666.60, with six per cent. interest, was seLancaster cured, and being so, stands upon the same footing as the other debts due to the testator, and the executors were authorized to collect it, and the collection of the same in Confederate money was valid, and discharged the debtor; and that the deed of the executors, releasing the lien on said property, was a valid and legal discharge of the same, and that they are not liable for any loss that has subsequently occurred in consequence of such collection and release.

Sixth. That investments made by said executors, in Confederate States bonds, were legal and valid, and that said executors are not liable for any loss sustained by reason of such investments.

From this decree an appeal was allowed by one of the judges of this court.

The first question we have to determine is as to the validity of the sale made by the executors, of what is known in the record as the Leigh street property. This sale is objected to, and its validity assailed upon two grounds-first, that three executors having been appointed by the testator to execute the trusts of his will, the sale and deed made and executed by two, in the absence of the third, was a void act, and couferred no title on the purchaser. Second, that if the two acting executors had the authority to sell and convey this valuable real estate in the absence of the third (who had not then qualified, and who did not unite in the deed), still they had no authority to sell the same